Authors Guild Loses Book Scanning Case Once Again

from the because-book-scanning-is-fair-use dept

The Authors Guild simply won't give up on its quixotic attack on modern technology. Even after losing both of its book scanning cases -- one against the Hathitrust (a collection of university libraries) and the other against Google -- it appealed both rulings. This morning, the ruling in the first of those cases, the Hathitrust one, came out, and it pretty much demolished the Authors Guild's arguments, finding, yet again, that book scanning like this is clearly fair use, though for slightly different reasons than the lower court. But there is plenty of useful stuff in the ruling. First, the court explored whether having a full-text searchable database of all text is fair use and found overwhelming support for that idea:

Turning to the first factor, we conclude that the creation of a full-text searchable database is a quintessentially transformative use. ... [T]he result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn. Indeed, we can discern little or no resemblance between the original text and the results of the HDL full-text search.

There is no evidence that the Authors write with the purpose of enabling text searches of their books. Consequently, the full-text search function does not “supersede[] the objects [or purposes] of the original creation,” ... The HDL does not “merely repackage[] or republish[] the original[s],” ... or merely recast “an original work into a new mode of presentation,”
.... Instead, by enabling full‐text search, the HDL adds to the original something new with a different purpose and a different character.

In other words, copying all the words in books to create that searchable database is transformative fair use. In fact, the court notes that it "adds a great deal more to the copyrighted works at issue than" other transformative uses that the same court has approved. As for the fact that it copies "all" of the work, and how that impacts the "amount of work" used as a fair use test, the court, thankfully, focuses on the word necessary in exploring if "more of the copyrighted work than necessary" was used -- finding that "for some purposes, it may be necessary to copy the entire copyrighted work" and thus that does not weigh against the third factor in the fair use test.

Because it was reasonably necessary for the HDL to make use of the entirety of the works in order to enable the full-text search function, we do not believe the copying was excessive.

The Authors Guild, somewhat ridiculously, argued that because the full copies are kept on multiple servers, it meant that Hathitrust had "more copies than necessary," but the court brushes that aside by pointing out the value of backups and load-balancing between multiple servers.

But the really big issue comes down to the impact on the market, the fourth factor in the fair use test, and the one that is generally considered to be the most important. The court here makes an important distinction that many people completely miss when analyzing the "impact on the market" question -- which is that the only impact that matters is the impact because the copy serves as a substitute for the original. There are lots of other ways the copy might impact that market that do not matter in this analysis.

To illustrate why this is so, consider how copyright law treats book reviews. Book reviews often contain quotations of copyrighted
material to illustrate the reviewer's points and substantiate his
criticisms; this is a paradigmatic fair use. And a negative book
review can cause a degree of economic injury to the author by
dissuading readers from purchasing copies of her book, even when
the review does not serve as a substitute for the original. But,
obviously, in that case, the author has no cause for complaint under
Factor Four: The only market harms that count are the ones that are
caused because the secondary use serves as a substitute for the
original, not when the secondary use is transformative (as in
quotations in a book review).

The Authors Guild tried to get around this by using a popular tactic in copyright/fair use cases: claiming that the use might preclude a future licensing opportunity for the work. Thankfully, the court flat out disagrees with this assertion:

This theory of market harm does not work under Factor Four, because the full‐text search function does not serve as a substitute
for the books that are being searched... Thus, it is irrelevant that the
Libraries might be willing to purchase licenses in orderto engage in this transformative use (if the use were deemed unfair). Lost
licensing revenue counts under Factor Four only when the use
serves as a substitute for the original and the full‐text‐search use
does not.

The Authors Guild also tested out a more laughable, and less popular theory, that because someone might hack into the database and free the works, it represents a harm on the market. The court is... not impressed, noting (1) that the libraries have taken precautions against this and (2) the risk is "hypothetical" and "conjectural" calling back to the MPAA's claims of "harm" from the VCR, where the Supreme Court rejected as being merely "speculative." In other words, you have to show a real likelihood of harm and not just some fantasy land conjectures.

The court also looks at two other users of the work. First, there's the question of providing digital access to "print-disabled audiences" (e.g., the blind, who may have trouble with ordinary books). It's somewhat ridiculous that the Authors Guild seems to actively fight against making works available in other ways to those it doesn't properly serve, but that's the Authors Guild these days. Once again the court notes that this is a clear fair use. Finally, on the question of "preservation" of the works, the court punts, saying it's unclear if that's really an issue with any of the works involved in this lawsuit. Thus, it's not clear if the Authors Guild even has standing to argue that the preservation of works is copyright infringement. So it sends the argument back down to the district court on that issue.

All in all, yet another good win for fair use -- though, given the Authors Guild's previous actions, it is likely they will appeal this ruling as well. Because that's what the Authors Guild does.

Bullshit lawsuit. There are number of prime out of copyright books out there, and these are kept away from us, because there is money to be made in new editions. This pertains to Guild and Google alike.

Re: Re:

There is a chilling effect with regard to public domain works, because it may be that the work, or some part of the work, is actually still copyrighted. This is why we need to ditch strict liability, and switch over to negligence. And also revive our registration system, plus some.

Re: Re: Re:

Publishers also tend to keep old works of of the market, because when physical copies were required there was not enough demand to justify a batch production run. They also think that by doing so they maximize the sales of new works. Many old films have been lost because of this, and copyright prevents anyone other than the original studio from making any form of remake.

Dark Money, Yummy as Honey

Knowing that the little piddly Graphic Artists Guild has collected tens, sometimes hundreds of thousands of dollars annually in the form of reprographic royalties coming through the Authors Coalition, which the Authors Guild is also a member of, their actions shouldn't be too surprising if the AG is also getting some of that lovely free money. Fair use and public domain cut into the bottom lines of the corporations that run the reprographic racket, which get to charge licensing fees for stuff that might otherwise be free. I'd say that these lawsuits are just examples of minions licking the hand that's been feeding them.

Circular reasoning

Thus, it is irrelevant that the Libraries might be willing to purchase licenses in orderto engage in this transformative use (if the use were deemed unfair).

So the guild was arguing that if this isn't fair use, then they could charge licensing fees for it, therefore they're losing an income opportunity, so it's not fair use. Amazing. Glad the court saw through that.